Almanac

Another lawsuit: Atherton donates $10K to high-speed rail litigation

by Renee Batti

Hoping to set an example for other local communities that will be impacted by construction of the high-speed rail project, the town of Atherton is kicking in $10,000 to support a lawsuit that challenges the spending of project funds in the Central Valley.

The lawsuit is pending in Sacramento County Superior Court, and concerns work authorized by the California High-Speed Rail Authority on the Fresno-to-Bakersfield segment of the planned rail project. Mike Brady, a Menlo Park attorney, is representing the plaintiffs: Kings County, a Hanford-area farmer, and a Hanford resident.

The Atherton City Council on Feb. 20 unanimously approved contributing $10,000 to the cause, drawing the money from an existing $30,000 fund earmarked for the town's fight against the rail authority's plan to run the train along the Caltrains tracks through communities including Atherton.

Councilmen Jerry Carlson and Bill Widmer brought the question before the council, a request reflected in a letter from the Community Coalition on High-Speed Rail, which is headed by Atherton resident Jim Janz.

"There is an excellent chance that the litigation filed by Kings County and the individual plaintiffs can stop this project," according to the coalition's letter. "However, while this is a strong case on the merits, it is also a 'David and Goliath' effort. Attorney Mike Brady is handling the case on a pro bono basis, but is facing the state of California and the attorney general's office, with literally hundreds of attorneys and unlimited resources."

The lawsuit asserts that Proposition 1A, approved by voters in 2008, requires that spending of high-speed rail funds adhere to "very specific provisions," and that the rail authority "is proposing to spend the money (on the Fresno-Bakersfield segment) without complying with those mandatory requirements," Mr. Janz said in his letter.

Councilman Widmer urged the council to "put our money where our mouth is" in supporting the lawsuit, referring to Atherton's long-standing opposition to the rail plan.

Councilman Carlson said that spending one-third of funds already put aside for challenging the project "would be appropriate. Our community would certainly benefit from our actions if this lawsuit is successful."

Council members emphasized the need to encourage other Peninsula communities to contribute funds to the effort, and Mr. Widmer said he hoped Atherton's action would "shame them into doing something."

Mr. Janz told the Almanac that, as of earlier this week, Burlingame had agreed to help fund the lawsuit. The coalition is still waiting to hear from Menlo Park, Palo Alto and Belmont, he said. He estimated the cost of the litigation at $50,000 to $100,000.

Basis for lawsuit

Mr. Brady, the attorney, said the lawsuit is set for trial on May 31 in the Sacramento County courtroom of Judge Michael Kenny, who last week dealt a blow to another lawsuit filed by Peninsula cities including Atherton and Menlo Park.

Does that ruling bode ill for Mr. Brady's lawsuit? "Not at all," he said. "Our lawsuit is the only one in the state that says that the whole project is illegal."

The lawsuit dismissed last week, he noted, challenged the rail authority's adherence to the California Environmental Quality Act (CEQA), whereas the litigation he's pursuing on behalf of Kings County in the Central Valley involves the authority's plan to begin construction of the rail system before it is legally permitted to do so.

"Proposition 1A has a very important requirement: You can't start construction unless you have all the money in the bank, committed, or secured" for a usable segment of the railway, he said. The authority, he added, identified the usable segment it plans to build early in the project as a line from Merced to the Los Angeles basin, at an estimated cost of $31 billion. "But the authority only has $6 billion," he said, with no immediate prospects to raise the additional funds. Yet, the authority has said construction may begin in the Central Valley as early as July.

The rail authority also plans to build a conventional diesel rail system on a portion of the Central Valley system, Mr. Brady added. That, he said, will also violate Proposition 1A's requirement that authorized funding be spent on an electrified high-speed rail.

Proposition 1A, he said, has "very complex provisions and safeguards and restrictions which are designed to protect the state ... from financial risk. ... These are very detailed, and the Supreme Court of California has required these restrictions to be strictly enforced." The lawsuit alleges that there are about 10 violations of the restrictions in the rail authority's plans for the Central Valley's portion of the project.

Posted by Dr Doodle,
a resident of another community
on Mar 5, 2013 at 1:40 pm

Well, I'm no lawyer ... but judging by the quotes attributed in this article to Mr. Brady, it's questionable whether he's a lawyer either.

He says the "usable segment" is from Merced to Los Angeles.

Not quite. That's presumed to the be the Initial Operating Segment (a term with no legal definition) on which high speed rail service will first be introduced. There's also the federal requirement for "independent utility" and the Prop 1A requirement of "usability." The Central Valley construction project will have independent utility and will be usable by virtue of use for higher-speed diesel Amtrak service, as a high speed rail testbed, and as a component of the Initial Operating Segment.

He says the Authority plans to build a diesel rail system in the Central Valley.

Not really. Rather, the Authority is planning to connect its new tracks into the existing north/south freight tracks that Amtrak uses, thereby providing the opportunity for Amtrak to use the new tracks and provide higher-speed service. The Authority won't be spending any money on diesel equipment or operations; that's Amtrak.

He says that the Supreme Court has required the provisions of Proposition 1A to be strictly enforced.

Again, not really. Or rather, not at all. The California Supreme Court hasn't even looked at Proposition 1A.

If it were my $10,000, I'd want a better, and better informed, lawyer. Oh well.

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